CM-2014-405City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider Authorizing a Revenue sharing Agreement with Spike Frog
Volleyball in connection with the Round Rock Sports Center
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 5/2/2014
Dept Director: Chad McDowell General Services Director
Cost:
Indexes:
Attachments: laf revenue, laf approval form
Department: General Services Department
Text of Legislative File CM -2014-405
With this agreement the City enters into a revenue sharing agreement for XLR8 Volleyball
training classes with Spike Frog Volleyball at the Round Rock Sports Center. The City shall
account for all revenue and shall distribute to XLR8 Volleyball Training 50% of the revenue
generated.
Staff Recommends Approval
City of Round Rock Page 1 Printed on 5/2/2014
CONTRACT APPROVAL FORM FOR CITY MANAGER ACTION
Required for Submission of Specific City Manager Items
Department Name: General Services Department
Project Mgr/Resource: Chad McDowell
City Manager Approval
CMA Wording
Project Name: Sports Center Terms of Use Agreement
ContractorNendor: Spike Frog Volleyball
Consider executing a Sports Center Terms of Use Agreement between the City and Spike Frog Volleyball for use of the City of
Round Rock Sports Center.
Approval
EiEmployee EE Bowden
Notes/Comments
-Date April 17, 2014
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
COUNTY OF TRAVIS
CITY OF ROUND ROCK
SPORTS CENTER
TERMS OF USE
KNOW ALL BY THESE PRESENTS:
By execution of this City of Round Rock Sports Center Terms of Use (the "Terms of
Use") by the undersigned authorized agent of Spike Frog Volleyball, referred to herein as
"Licensee," Licensee, in consideration for Licensee being allowed to use all or a portion of the
City of Round Rock Sports Center ("RRSC") owned by the City of Round Rock, Texas (the
"City"), Licensee agrees that the following terms, conditions and obligations apply to such use.
1.01 LICENSED PREMISES.
Subject to the terms and conditions of these Terms of Use, Licensee shall be permitted to
use and occupy the portion of the Sports Center described in the Facility Request Form
submitted by Licensee and attached hereto as Exhibit "A", incorporated herein for all purposes,
(the "Premises") on the dates and at the times as described in Exhibit "A" (the "Program
Period"), for the following express purposes and no other purpose: XLR8 Volleyball Training
Program (the "Program"). The Premises includes common use public corridors and restrooms
necessary to accommodate patrons, together with such regularly provided heat, air conditioning,
and light as may be reasonably required for use of the Premises for the Program as determined
by the Sports Center's General Manager or designee (the "GM"). Space within the Premises
may be reassigned with the mutual consent of the Licensee and the GM. Licensee agrees that it
is accepting the Premises in their existing condition, as -is, and with all faults.
2.01 TERM
This Terms of Use shall remain in effect for one (1) year from the date of execution.
3.01 REVENUE SHARING
"Program Revenue" for the purpose of this Agreement shall be defined as revenue
generated from registration fees. Program Revenue shall be paid as follows:
1. Fifty percent (50%) of the Program Revenue shall be retained by the Licensee.
2. Fifty percent (50%) of the Program Revenue shall be retained by the City.
00292785/ss2
CM -2014-405
Following the conclusion of the Program Period, revenue shall be paid to the Licensee
within 30 days and the City shall prepare an invoice reflecting charges for Additional Services
(as described in Section 4.01, Paragraph C), damages, non -routine cleanup costs incurred by the
City related to the Program, and any other amounts owed to the City under these Terms of Use
(the "Invoice"). Licensee shall pay the amount of the Invoice within thirty (30) days of the date
of the Invoice.
4.01 MARKETING; SERVICES; EQUIPMENT.
A. Licensee's Obligations. Licensee agrees to provide the following marketing,
services, and equipment for the Program before and during the Program Period at its sole
expense:
1. A link on the Licensee's website directing viewers interested in the
Program to the RRSC's website for Program registration;
2. Marketing of the Program through the Licensee's newsletter; Facebook;
and website;
3. All costs of instructors and coaches for the Program;
4. A target of a coach to participant ratio of 1:7 for the Program;
5. All equipment necessary to operate the Program, with the exception of
additional volleyballs which shall be provided by the RRSC if needed; and
6. A t -shirt for each Program participant.
B. City's Obligations. The City agrees to provide the following marketing,
services, and equipment for the Program before and during the Program Period at no cost to the
Licensee:
1. Program registration via the RRSC website or in -office at the RRSC;
2. Participation in discussions with the Licensee during the registration
period to increase participation, if determined to be necessary by either the
City or the Licensee;
3. The rental fee for use of the court;
4. Marketing of the Program through the City's newsletter and RRSC's
reception television;
5. Marketing of the Program as being "in partnership with Spike Frog
Volleyball; "
6. A list of participants to the Licensee at the close of registration for roster
purposes; and
7. Storage space for any equipment.
C. Additional Services. Licensee shall pay for all additional services or equipment
requested, not set forth in Paragraph B above, from or provided by or through the City (the
"Additional Services") in accordance with the rates as may be established by the City from time
to time (the "Additional Service Amount"). In the event Additional Services are requested, the
Additional Service Amount shall be paid at such time as Licensee requests Additional Services
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and the Licensee shall pay the Additional Service Amount reflected on any invoice sent to
Licensee by the City.
5.01 MOVE IN AND MOVE OUT
Licensee may move in equipment, fixtures, and other property associated with the
Program (the "Program Materials"). The City agrees there shall be no charge for moving in the
Program Materials on the day prior to the first day of the Program Period. All Program Materials
shall be brought into or out of the Premises only through entrances designated by the GM.
Licensee shall remove all Program Materials from the Premises on or before the conclusion of
the Program Period. Program Materials may remain on the Premises if agreed to in writing by
Licensee and GM. Licensee agrees that the City shall never be liable in any manner whatsoever
for any damage to the Program Materials under any circumstances. At the conclusion of the
Program Period, Licensee shall return the Premises, equipment and other property to the City in
the same condition as before Licensee's use thereof. All Program Materials or other property
associated with the Program that remains on the Property following the conclusion of the final
portion of the Program Period shall become the property of the City. The Licensee is responsible
for the collection and custody of articles left in the buildings or parking lots of the Premises by
persons attending or participating in the Program. Following the Program, the Licensee may turn
unclaimed articles in to the City for disposition at the City's sole discretion.
6.01 DAMAGED PROPERTY AND CLEANUP
The City shall provide routine cleaning of the Premises at no additional cost to Licensee.
Licensee shall be responsible for all costs and reasonable expenses for any cleaning of walls,
floors, or other surfaces that cannot be effectively accomplished by broom sweeping or the use of
a mop or wiping cloth with a typical commercial cleanser. Licensee is also responsible for the
cost to repair any and all damages to the Premises or other City property caused by Licensee or
Licensee's agents, employees or subcontractors, exhibitors, customers or Program attendees or
guests. Licensee shall be barred from entering into any subsequent agreement for use of the
Premises, or any other City facility, unless and until Licensee has paid the City in full for any
such damages or non -routine cleaning costs.
7.01 SERVICES; CATERING AND CONCESSIONS
A. Sale or Rent of Concession Items. The City reserves for itself, or its designated
concessionaires or contractors, the sole right to provide all food, beverages and related
merchandise, together with the necessary floor space to do so.
B. Personnel. The City may furnish, to the extent feasible as determined by the GM
in GM's sole discretion, as an additional reimbursable item, all necessary personnel required for
Licensee's reasonable use of the Premises for the Program, including but not limited to safety
personnel, athletic trainers, staff, and other general labor.
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C. Safety and Security. The City operates a twenty-four (24) hour security
surveillance system and maintains the right to monitor and record any and all areas of the
Premises at all times.
8.01 RECORDINGS
A. Images, Video or Audio Recordings. The Licensee may make audio and/or
video record proceedings of the Program. LICENSEE SHALL INDEMNIFY AND HOLD
HARMLESS THE CITY FROM ANY CLAIMS FOR FEES, ROYALTY PAYMENTS, OR
OTHER COSTS ASSOCIATED WITH SUCH RECORDING WHICH MAY BE DUE TO
THIRD PARTIES. The Licensee shall have the right to use any images or videos from the
Program for the purpose of creating marketing materials.
9.01 INSURANCE AND INDEMNIFICATION.
A. Insurance. Licensee shall obtain and maintain throughout the Program the
insurance coverage described in this Section. At least sixty (60) days prior to the commencement
of the Program, Licensee shall provide to GM an insurance certificate acceptable to the City
reflecting such insurance policies. Licensee shall not cause or permit any insurance policy to
lapse or be cancelled prior to or during the Program. Licensee shall pay all premiums,
deductibles and self-insured retentions, if any, stated in the policies. The City, its officials,
employees and agents shall be named as additional insured on all coverage required by this
Section. Licensee shall obtain and maintain the following insurance coverage:
1. Commercial general liability insurance with a minimum combined single limit of
$1,000,000 per occurrence and a minimum $1,000,000 aggregate including
products and completed operations and contractual liability coverage. Fire legal
liability must be included with minimum limits of $50,000.
2. Comprehensive business automobile liability insurance with a minimum
combined single limit of $500,000 including coverage for all owned, non -owned
and hired autos.
Only insurance written by a company with an AM Best rating of no less than a B+ VII and in
good standing with the Texas State Board of Insurance shall be acceptable to the City.
B. Indemnity. Licensee shall defend (at the option of the City), indemnify, and hold
the City, its successors, assigns, officers, employees and elected officials harmless from and
against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses,
attorney's fees, and any and all other costs or fees arising out of, or incident to, concerning or
resulting from the fault of Licensee, or Licensee's agents, employees or subcontractors, or any
participant or attendee of the Program arising from, associated with, or otherwise relating to the
Program, including, but not limited to, claims related to any intellectual property rights, or
musical, literary or artistic works, claims related to the collection or reporting of taxable sales, or
other costs no matter how, or to whom, such loss may occur. Nothing herein shall be deemed to
limit the rights of City or Licensee (including, but not limited to the right to seek contribution)
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against any third party who may be liable for an indemnified claim. Maintenance of the
insurance required under these Terms of Use shall not limit Licensee's obligations under this
paragraph.
10.01 TERMINATION
A. Termination for Convenience. The City shall have the right to terminate any
and all rights granted to Licensee for use of the Premises, or any other City -owned property, for
convenience and without cause, at the City's sole discretion within ninety (90) days written
notice given to Licensee or Licensee's agent. In the event that City terminates the rights of
Licensee under this paragraph, the City shall return all collected registration fees within fifteen
(15) days of such termination. In the event that the City terminates this Agreement without
cause, the City shall not be reimbursed for any Marketing Costs expended by the City.
B. Termination for Default. In the event of any failure by Licensee to comply with
any of these Terms of Use ("Default"), in addition to all other rights or remedies available to the
City under law or in equity, the City shall have the right to terminate any and all rights granted to
Licensee for use of the Premises, or any other City -owned property, at any time upon written
notice given to Licensee or Licensee's agent. Upon termination of Licensee's rights by the City,
City, its agents or representatives, may, without further demand or notice, reenter and take
possession of the Premises and remove persons and property from the Premises without
committing any manner of trespass, and without prejudice to any remedies of the City for such
Default. If the City terminates the rights of Licensee under this paragraph, the City shall have the
right to retain any revenues paid to the City (the "Retained Amount"). If actual damages
sustained by the City as a result of any Default exceed the Retained Amount or if there is not a
Retained Amount, the City shall have the right to recoup any such damages through any remedy
at law or equity, subject only to an offset for the Retained Amount. If actual damages sustained
by the City as a result of any Default do not exceed the Retained Amount if there is a Retained
Amount, Licensee agrees that the City may retain the Retained Amount as liquidated damages.
11.01 COMPLIANCE WITH LAWS, RULES AND REGULATIONS
Licensee shall comply with all applicable Federal, State, City, and local laws, ordinances,
rules and regulations concerning the use of the Premises or the conduct of the Program and will
not do, nor suffer to be done, anything on the Premises in violation of any such laws, ordinances,
rules or regulations. Licensee shall obtain and pay for all necessary permits and licenses. The
City may adopt and enforce reasonable rules, regulations and standards, which Licensee agrees
to observe and obey, with respect to the use of the Premises, together with all improvements,
equipment and services of the City, for the purpose of providing for safety, good order, good
conduct, sanitation and preservation of the Premises.
12.01 FORCE MAJEURE/OCCUPANCY DISRUPTION
A. Force Majeure. The failure of the City to perform its obligations under this
Agreement shall be excused to the extent, and for the period of time, such failure is caused by the
occurrence of an event of Force Majeure. Force Majeure shall mean acts and events not within
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the City's control, and which the City has been unable by the exercise of due diligence to avoid
or prevent. Events of Force Majeure include, without limitation: Acts of God; strikes, lockouts,
or other industrial disputes; inability to obtain material, equipment or labor; epidemics, civil
disturbances, acts of domestic or foreign terrorism, wars within the continental United States,
riots or insurrections; landslides, lightning, earthquakes, fires, storms, floods or washouts; arrests
and restraint of rulers and people; interruptions by government or court orders; declarations of
emergencies by applicable Federal, State, or local authorities; present or future orders of any
regulatory body having proper jurisdiction and authority; explosions; and breakage or accident to
machinery.
B. Notice. The City shall give Licensee prompt notice of the event of Force Majeure
by electronic mail, facsimile transmission, or telephone confirmed promptly thereafter in writing,
and shall use due diligence to remedy the event of Force Majeure, as soon as reasonably
possible; provided, however that nothing contained herein shall be construed to require a party to
settle a strike or other labor dispute against its will.
C. Termination. If the use of the Premises by Licensee is prevented in whole or in
material part by an event of Force Majeure, the City may terminate this Agreement upon written
notice. Licensee agrees that its exclusive remedy in the event of a termination under this Section
shall be a refund of any fees and charges paid by Licensee hereunder prior to the termination.
Except for such refund, the City shall not be liable or responsible to Licensee for any damages
caused by such termination, and Licensee hereby releases and waives all claims against the City,
the City, and its officials, officers, employees and agents, for any cost, loss, expense, liability, or
damages sustained by reason of such termination.
13.01 CONTROL OF BUILDING
The Premises, including keys thereto, shall be at all times under control of the City. The
GM and other duly authorized representatives of the City may enter the Premises at all times
during the Program Period. The entrances and exits of the Premises shall be locked and
unlocked at such times as may be reasonably required by Licensee for its use of the Premises.
Licensee at Licensee's expense shall provide security guards or law enforcement personnel
arranged through the City in numbers and at locations as determined by the GM, whose duties
shall include, but not be limited to, crowd control and building security. The City may eject or
cause to be ejected from the Premises any person engaging in or conducting him/herself in a
manner that is unlawful, disruptive, abusive or offensive to other patrons at or in the Premises.
Neither the City, nor any of its officers, agents or employees shall be liable to Licensee for any
damages that may be sustained by Licensee or the ejected person through the City or the GM's
exercise of such right. The City may schedule other events before, during and after the Program
Period for all areas of the RRSC not previously contracted by Licensee without notice to
Licensee.
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14.01 MATTERS NOT COVERED
Any decision concerning a matter not specifically covered by these Terms of Use, on
subject matters reasonably inferable from the terms of this Terms of Use, shall rest solely within
the reasonable discretion of the GM, acting by and on behalf of the City.
15.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of these Terms of Use or
the occurrence of any Program rendering any portion or provision of these Terms of Use void
shall in no way affect the validity or enforceability of any other portion or provision of these
Terms of Use. Any such void provision shall be deemed severed from these Terms of Use, and
the balance of these Terms of Use shall be construed and enforced as if these Terms of Use did
not contain the particular portion or provision held to be void. Licensee further agrees that these
Terms of Use may be amended to replace any stricken provision with a valid provision that
comes as close as possible to the intent of the stricken provision. The provisions of this section
shall not prevent these Terms of Use from being void should a provision which is of the essence
of these Terms of Use be determined to be void.
16.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
These Terms of Use shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in the courts of Williamson County, Texas. These
Terms of Use shall be governed by and construed in accordance with the laws and court
decisions of the State of Texas.
17.01 DISPUTE RESOLUTION
Licensee hereby expressly agree that no claims or disputes between the Licensee and the
City arising out of or relating to the Program, these Terms of Service or a breach thereof shall be
decided by any arbitration proceeding, including without limitation, any proceeding under the
Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute.
18.01 ASSIGNMENT AND DELEGATION
Licensee hereby binds itself, its successors, assigns and legal representatives with respect
to these Terms of Use. License shall not assign, sublet or transfer any interest or rights under
these Terms of Use without prior written authorization of the City.
19.01 NOTICES
All notices and other communications in connection with the Program shall be in writing
and shall be considered given as follows: (1) when delivered personally to Licensee or
Licensee's agent; (2) three (3) days after being deposited in the United States mail, with postage
prepaid to the Licensee at the address stated in the Facility Request Form; (3) notice to the City
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shall be considered given when delivered personally to the addresses below, or three (3) days
after being deposited in the United States mail, with postage prepaid to the addresses below.
Steve Norwood, City Manager
221 East Main Street AND TO:
Round Rock, TX 78664
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of the City and Licensee.
20.01 NON -WAIVER
The City's acceptance of fees or charges, or failure to complain of any action, non -action
or default of Licensee, whether singular or repetitive, shall not constitute a waiver of any of the
City's rights unless the City expressly agrees in a separate written instrument supported by
independent consideration. The City's waiver of any right, or any default of Licensee's shall not
constitute a waiver of any other right or constitute a waiver of any other default or any
subsequent default. No act or omission by the GM or the City's agents shall be deemed an
acceptance or surrender of the Premises. The City's agents and representatives do not have
authority to make any changes to these Terms of Use, make any agreements with Licensee, or
accept surrender of the right to use the Premises unless same are in writing and signed by an
authorized agent of the City. The GM is the authorized agent of the City under these Terms of
Use.
21.01 ATTORNEY'S FEES
If the City is required to file suit to collect any amount owed it under these Terms of Use,
the City shall be entitled to collect reasonable attorney's fees, court costs and other expenses of
litigation if it prevails in such suit.
22.01 ENTIRE TERMS
These Terms of Use constitute the entire terms governing Licensee's use of the Premises,
and supersede any and all previous oral or written terms or representations between the parties.
Licensee agrees that the City and its agents have made no representations or promises with
respect to these Terms of Use, except as expressly set forth herein, and that no claim or liability
or cause for termination may be asserted by Licensee against the City, and the City shall not be
liable by reason of the breach of any alleged representation or promise not expressly stated in
these Terms of Use. These Terms of Use may only be amended in writing signed by the
Licensee and the City. Nothing in these Terms of Use gives or shall be construed to give or
provide, any benefit, direct or indirect, to any third party.
23.01 WARRANTY OF AUTHORITY
Licensee warrants and represents that the person signing these Terms of Use on its behalf
has been duly authorized and empowered to do so, that it has taken all action necessary to
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approve these Terms of Use, and that these Terms of Use are a lawful and binding obligation of
Licensee.
IN WITNESS WHEREOF, Licensee executes these Terms of Use and agrees to be bound by
them regarding Licensee's use of the Premises.
City of Round Rock, Texas
By:
Printed
Steve torkmood
Title: G r 4 eA2
Date Signed: a
Attest:
By:
Sara L. White, City Clerk
For City pproved as o Form:
By:
Stepha ' L. Sheets it , y Attorney
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Spike Frog Volleyball (Licensee)
By:
Printed Name:
Title: 0) J eF
Date Signed: p 4r l `*